By JOE PATRICE
There’s a legal equivalent to Baldwin’s doctor, and it’s not a judge or even a senior partner. For the biggest “God Complexes” (“God Complii?”) look to your friendly, neighborhood prosecutors. Imbued with extraordinary power through the charging process and the investigatory resources of the government, prosecutors can get used to getting their way and indifferent to the plight of defendants, witnesses, and counsel. And nothing can raise their ire more than someone unwilling to cooperate. “How dare they defy me?”
Take the case of Kevin Ring, a Jack Abramoff acolyte sentenced to almost two years of prison time, whose conviction was just upheld by the D.C. Circuit (opinion available here). I’m not a huge fan of lobbyists, but the transgressions proved at Ring’s trial look way too small to justify his sentence.
Instead, it looks like his primary crime was not cooperating with the almighty government….
Cooperation should be cause for reward. Non-cooperation should not incite punishment. The difference is thin, but significant. And the details of the Kevin Ring case certainly read as though prosecutors decided to make an example out of him for not cooperating.
In Ring’s case, after securing modest sentences for cooperating lobbyists with more egregious conduct (including Abramoff himself), the government sought a 20-year prison term for the non-cooperating Ring. Take a second to ponder that… the government wanted to put Ring away for three to four times longer than the actual ringleader of the whole affair! There’s “rewarding cooperation,” and then there’s whatever the government was doing here.
To test if this is just withholding a reward or exacting punishment, what did Ring do to deserve a 20-year prison term in the eyes of the government? Walter Pavlo, take it away:
If there is bribery of any government official, I want to see evidence of big money in an envelope being passed from overcoat to overcoat in a dark corner of a bar. In other words, bribery should be a blatant act of money being used to influence someone in office and not some conspiracy theory that an expensive dinner and watching football from box seats was overly influential. Such is the case of Kevin Ring. No cash in a bag, no strip clubs, no private jets … but there were Washington Redskin games, a few dinners and Disney on Ice tickets to government officials.
In the pre-RGIII era, handing out Washington Redskins tickets should not be considered “something of value.” And to quote Walter Pavlo again, “[y]ou can only be considered so much of a real bad-ass in the world of lobbying when you’re handing out tickets to Disney on Ice in return for political favors….”
And most importantly, I find it insulting that public integrity could be bought by Disney on Ice. I demand a higher class of graft-taking politician!
So the prosecutors asked for 20 years, the defense asked for probation, and Judge Ellen Segal Huvelle split the difference with the two-year prison term (after telling the prosecutors she wouldn’t even entertain anything over 50 months). But the prosecutors set the parameters of the judge’s decision and even seeking four-plus years for a couple of tickets and a dinner or two without a specific quid pro quo feels like a tremendous misuse of judicial resources solely to make an example out of a non-cooperator. Even if the statute and guidelines allow the prosecutor to ask for 20 years, prosecutors exercise discretion in shaping charges every day in the interest of justice and could have easily done so here.
Now, Kevin Ring will likely file a writ of certiorari, hoping to get his conviction overturned. He has some legitimate arguments about the D.C. Circuit’s interpretation of the bribery statutes, but unfortunately, even if they hear the case, the Court will not have the opportunity to rule on checking prosecutorial power. And that seems to be the real problem here.
More tragically, there won’t be enough Senators in the audience to bring Tinkerbell back to life with their applause.
Had similar claims in cases a few years back here in Alabama.
A U.S. Attorney under fire for her prosecution of an Internet activist is back in the news after a judge refused prosecutors’ bid to seize a family-owned budget motel.
On Jan. 17, U.S. Attorney Carmen Ortiz defended her office’s prosecution of 26-year-old “hactivist” Aaron Swartz, who committed suicide as he awaited a felony trial over accusations he downloaded scholarly papers to make them accessible for free. Critics accused Ortiz of prosecutorial overreach; Ortiz told of a six-month plea offer and said her office was enforcing the law responsibly.
A week later, U.S. Magistrate Judge Judith Dein of Massachusetts issued a “sometimes scathing ruling” rejecting the motel forfeiture request by Ortiz’s office, the Wall Street Journal (sub. req.) reports. According to the Christian Science Monitor, “The two cases are feeding a simmering groundswell among constitutional law professors and others about the inherent discretionary powers of federal prosecutors.”
The government had argued that the Motel Caswell in Tewksbury, Mass., was subject to forfeiture because of 15 drug-related incidents that took place there over a 14-year period. Russell Caswell, who ran and partly owned the $57-a-night motel, said he had no part in the drug crimes, and didn’t know of them until after they occurred, according to the Wall Street Journal, the Lowell Sun and the Boston Herald.
In the ruling (PDF), Dein said it was “rather remarkable” for the government to contend that owner Russell Caswell should lose his property “for failure to undertake some undefined steps in an effort to prevent crime.” Dein said Caswell “was trying to eke out an income from a business located in a drug-infested area that posed great risks to the safety of him and his family” and he took reasonable steps to prevent crime.
After the ruling, Caswell criticized the U.S. Attorney’s office for bringing the case. “It’s bullying by the government,” he told the Boston Herald.
The Institute for Justice helped represent Caswell. The ruling is “a major triumph for property rights,” according to a press release.